Samanna Vs. State of West Bengal & ANR  INSC 787 (21 October 1997)
NANAVATI, M. JAGANNDHA RAO
APPEAL NOS. 297 & 298 OF 1987)
JAGANNADHA RAO. J These three Appeals arise out of the Judgment of the High Court
of Calcutta in Criminal appeal No. 159 of 1982 date 21.2.1986. BY that
judgment, the conviction and sentence of eight accused, has been confirmed.
Aggrieved thereby Suchir Samanta (accused No.4) has filed Criminal Appeal No.
296 of 1987 S.K. Ejahar alias Asgar Hussain (accused No. 9) has filed Criminal
Appeal No. 298 of 1987, Six others, namely, Supriya Parial (accused No. 1), Gajendra
Nath Mondal (accused No. 2), Biswanath Bhowmick (accused No. 3) Kalachand Bharat
(accused No. 5), Nemai Das (accused No. 7) and Jagannath Mondal (accused No.
8), filed Special Leave application No. 1656 of 1986 and in that petition by
order dated 13.7.1987, leave was refused for Nemai Das and Biswanath Bhommick
(Accused No. 7 and 3 respectively). Leave granted to other and the appeal has
been registered as Criminal appeal No. 297 of 1997, leaving Supriya Paris
(accused No. 1), Gajendra Nath Mondal (accused No. 2), Kalachand Ghoral
(accused No. 5) and Jagannath Mondal (accused No. 8) as appellants in Criminal
Appeal No. 297 of 1986. We may also state that there was one more accused, (in
all nine initially) before the Session Court, namely S.K. Eshak (accused) No.
6) but he died during the pendency of the case before the Session Court. The
Sessions Court and the High Court, therefore, convicted and sentenced only
eight accused. We have before us six accused, in there appeals, namely, A4, A9,
A5 whose cases were argued separately and A1, A2, A8, whose cases stand on
somewhat different footing.
the Session Court, Midnapore, all the nine accused stood charged with
commission of offence under section 148 I.P.C section 304 (Part-I) I.P.C. read
with section 149 I.P.C and section 323 I.P.C read with section 149. By his
judgment dated 6.5.1982, the learned Sessions Judge convicted the accused under
all the above counts. He sentenced them to suffer rigorous imprisonment for two
years for the offence under section 148 I.P.C.; rigorous imprisonment for seven
years and fine of Rs. 1000 (in default, rigorous imprisonment for one year more)
for the offence under Section 304 Part-I I.P.C read with Section 149 I.P.C.;
and rigorous imprisonment for one year under section 323 I.P.C. read with
section 149 I.P.C. The sentences were to run concurrently.
the prosecution case that in incident dated 28.11.1979 Gurudas Mondal (PW 1)
suffered injuries while his son Chittaranjan Mondal died.
case is that one lady Anange Manjari, widow of lat Bhutnath Mondal (granduncle
of Gurudas Mondal, PW 1) executed a deed on 14.9.1975 in respect of the
property in question to a deity and appointed PW 1 as Shebait and put him in
possession of land including plot no. 1855 of 99 decs, in Santipur in West Bengal. Later she filed a suit for
cancellation of the deed, at the instigation of Ganjendra Mondal (A2) and at
the cousins of PW 1. Four of five days prior to 28.11.1979 (the day of the
incident), Gurudas (PW 1) got information that accused Sudhir Samanta (A4), Gajendra
Mondal (A2), Supriya Paria (A1), Jagannath Mondal (A8) and one Gour Dhuiya had
conspired together and were holding out threats to the effect that they would
assault Gurudas (PW1) and his son and thereupon, Chittaranjan Das (son of PW 1)
lodged a G.D. at Tamiuk Police Station on 25.11.79.
further case of the prosecution is that on 28.11.1979, at about 10 A.M., Gurudas
Mondal (PW 1) with his sons Chittaranjan Mondal described as Chitta (deceased),
Kishore (PW 8), Ashish, and step brother Bamandas (PW 10) and labourers (such
as Madan Jaria (PW 9). Sudhir Mondal (PW 1), Sahedab Mondal (PW 12) and other
went to harvest paddy in plot No. 1055 measuring 99 decs of Mouza Sartipur
(within Tamluk Police Station), which was cultivated by PW1, as Shebait of the
deity in whose favour the said Ananga Manjari (childless widow of late Bhutnath
Mondal) had executed a deed on 14.9.1975. It is the prosecution case that at
that time, the accused 1 to 9 came and other in a body armed with lethal
weapons like lathi, ballam, katari etc. and directed Gurudas not to harvest the
paddy. An exchange of words followed and Gurudas (PW 1) proceeded towards the
western boundary of the said plot and stood on the all (which demarcated this
plot from the adjacent plot belonging to one Abdul Hussain). It is said that
there, on the all, Supriya Paria (A1) delivered a blow with lathi which hit Gurudas
(PW 1) on his right ear causing bleeding injury. PW1 set down but then accused Jagannath
(A8) and Nemai Das (A7) began to assault him with kicks and blows. PW 1 fell
down on the land of Andul Hussain. At that time his son Chirta rushed to that place to rescue
his father but accused Biswanath Bhowmick. As assaulted him with lathi on his
head as a result of which Chista fell down on the ground unconscious. Then
accused Nemai Das (A7) also assaulted Chitta with lathi. At that time PW 2 (Sachin
Bhowmick), PW 3 washed the wounds of Chitta with a napkin in water in a nearby
pond. The injured persons were removed to Mecheda Bazar in a cycle rickshaw van
and from there to the Police Station, Tamluk, PW 15 who was the Manager of a temporary
cinema hall of which Chitta was a partner, accompanied. At the Police Station,
PW 1 lodged a complaint against the accused. Chitta succumbed to the injuries
and died on 29.11.79 at 5.30
a stated earlier, the nine accused were charged under section 148; section 304
Part-I read with section 149 I.P.C and section 323 read with section 149 I.P.C
. The accused pleaded not guilt. The trend of the cross-examination read with
the statements of the accused under Section 313 Cr. P.C was to the effect that
the accused were falsely implicated that the alleged incident a few days before
28.11.79 was false and so far as the cultivation of the land was concerned
their case was that Ananga Manjari was in possession and not Gurudas (PW 1).
learned Session Judge divided the discussion of the evidence into several
parts. He first held that, thought plot no. 1855 was not mentioned in the FIR,
the evidence of PWs, 2, 3, 8, 9, 10 and 11 showed that the incident took place
in plot No. 1855 only where Gurudas (PW 1), his son Chitta and other went to
harvest paddy. He next considered whether there was convincing evidence on
record to show that Gurudas (PW 1) was in possession and whether he had raised
the paddy in that plot. The learned Session Judge considered the prosecution
case and held that Gurudas (PW 1) was in possession of this p-lot and that it
was he who raised the paddy there. Thereafter, the learned Session Judge
considered whether the incident, as alleged, had taken place. He then referred
to the relevant evidence, including the medical evidence, and used the words
"all the accused persons" when he came to the conclusion that
"all the accused persons, came up to a body being armed with lathis etc. When
Gurudas and his men paid to head to the words of three of the accused person
who had come earlier. The evidence on record thus shows that the accused person
where members of an unlawful assembly. the common object of which was to commit
criminal trespass upn the land which was in the possession of the defacto
complaint and to assault the defacto complainant and his men including his
sons. the evidence on record Shows that all the accused persons were armed with
lathis, baliams sickle etc." Thereafter the learned Session Judge
proceeded to hold further as follows:
the evidence on record and the circumstance of the case, I, therefore, hold
that the prosecution has convincingly proved beyond all reasonable doubt that
the accused persons, who more than five in number, assembled together, that the
assembling came upon for the purpose of committing criminal trespass and to
assault the defacto complainant and his mens, that some members of the assembly
used force or violence, that such force on violence was used in the prosecution
of such common object and the accused persons were armed with deadly weapons at
the time of the incident." He finally concluded.
evidence on record has also proved convincingly beyond all reasonable doubt
that all the accused persons were members of an unlawful assembly and that the
offence under section 304 Part-I and section 323 I.P.C were committed by some
members of such as such (six) as the members of the assembly knew to be likely
to be committed in prosecution of the common object of that assembly." ON
that basis, he convicted the eight accused (A6 having died earlier) and
sentenced them as mentioned hereinbefore.
appeal preferred by the eight accused before the High Court the aforesaid
conviction and sentences were confirmed against all the accused. The high Court
rejected the contention that the incident die not take place in plot No. 1855
and observed that the omission of the plot No. 1855 in the FIR was immaterial,
it held that though the FIR did not specifically mention as to who was
assaulted by whom.
nonetheless, it is absolutely plain and clear from the FIR that Gurudas and Chitta
were assaulted by the appellants. and convincing the circumstances of assault,
namely, that the assailants came together armed with members, non disclosure of
the individual part taken by the different assailants is not a substantial
defect to affect the case of the prosecution.
(PW 2) and Panchanan (PW 3) were independent witnesses and they came from the neighbourhood,
after the incident started and that the evidence showed that there was a
unlawful assembly and its object was to commit trespass and assault and in
members of the assembly voluntarily caused hurt to Gurudas while some others
assaulted Chitta which resulted in his death shortly thereafter." On these
findings, the appeal was dismissed.
senior counsel for Sudhir Samanta (A4) in Criminal Appeal No. 296 of 1987 and
for S.K Ejahar alias Asgar Hussain (A() in Criminal Appeal NO. 298 of 1987
contended that the learned Session Judge as well as the High Court ought to
have held that there was no evidence against these appellants that they with
other accused formed into an unlawful assembly with the common object of
committing trespass and assault and further that there was no evidence that
they had any motive or were carrying any weapons nor that they hit PW 1 or Chitta
with the said weapons resulting injury to PW 1 and death of Chitta. Even
assuming they were present at the time of the incident somewhere near the scene
of the offence, it could not be assumed that they had become part of the
unlawful assembly and shared the common object of committing the offence of
criminal trespass and assault, in fact, there were a large number of villagers,
even according to the prosecution - and there was no material to distinguish
these two appellants from the rest of the crowd and include them in the list of
accused along with those against whom specific acts where alleged.
counsel for the four other appellants, namely A1, A2, A3 and A8 in Criminal
appeal Nos. 297 of 1987 contended that the infirmity in the prosecution case
against Kalachand Ghorai (A5) was no different from the infirmitives against
accused A 4 and A 9. Even assuming A ( was present on the scene, his presence
was not different from that of the other villagers, there was no proof that he
was part of the unlawful assembly and in fact no specific act was attributed to
him. So far as the others, A1, A2 and A8 were concerned, learned counsel made a
submission that firstly the evidence adduced was not sufficient to treat them
as part of the unlawful assembly or that they had taken specific part in the
actual incident of criminal trespass and assault on PW 1 and Chitta and
alternately the conviction against A1, A2 and A8 was liable to be converted
into one under Section 304 Part-II I.P.C in as much as the ingredients of
Section 304-Part-I I.P.C have not been fulfilled.
other hand, learned counsel for the respondent contended that though there was
no specific evidence as to the role of A4, A9, and A5, still there was evidence
that they were members of the unlawful assembly and that was sufficient to
maintain their conviction and sentence. It was not necessary to prove any overt
act on respect of every person who was a member of an unlawful assembly. So far
as accused A1, A2 and A8 were concerned they were rightly convicted and for the
specific acts attributed to them. In particular, their hitting Chitta on the
"head" brought the case under section 304 Part I and therefore the
plea to convert the conviction into one under section 304 Part-II should not be
have already extracted the relevant portions from the judgments of the learned
Sessions Judge and the High Court and the word underlined by us in the said paragraphs
show that all the accused A1 to A9 were dealt with together thought at the same
time it was also stated that there was proof that "some of these
accused" have dealt the blows on PW 1 and Chitta. We have, therefore, to
consider whether the contention of the appellants that the approach of the
Session Court and of the High Court in this behalf was not correct, has any
have heard the submission of the learned counsel limited to these aspects and
have been taken through the evidence. Ordinarily, this Court does not review
the findings of fact if based on evidence considered by the High Court and the
Sessions Court but where this Court is satisfied that the courts have not
considered the evidence of the witness from the proper perspective or that they
have gone by general conclusions drawn from vague or generalised evidence, it
may sometimes become necessary to go into the evidence to find out if the
approach, having regard to the facts of the case, was proper. In the present
case, we find that no effort was made by the Sessions Court and the High Court
to find whether accused A4, A5 and A9 were at all members of an unlawful
assembly and we feel, therefore, that the High Court and Session court ought to
have gone into these aspects in greater detail.
it is true that before a person could be held to be a member of an unlawful
assembly, it is not necessary that he should have done some overt act or guilty
of some omission in pursuance of the common object of the unlawful assembly, it
is well settled that first, it must be established that he was a member of the
as in this case, a large number of villagers were present at the scene of the
offence and common object and specific acts were attributed only to a few among
the nine accused and there was nothing so far as A4, A9 and A5 were concerned
as regards common object or overt acts or motive were concerned, question
arises whether there was proof that A4, A9 and A5 went there with the same
common object as those accused to whom overt acts were attributed. It has been
held that in such a context and with a view to guard against convicting person
who were not part of the unlawful assembly, it is permissible to consider the
nature of the gathering, how they assembled and what weapons they were armed
with how they proceeded and further the part played by them.
outset, we may point out that the medical evidence of PW 13, who examined PW 1
and Chitta on 28.11.79 at the Tamluk B.D. Hospital
initially, is to the effect that PW 1 sustained a single lacerated injury over
the centre of the scalp measuring 2" x 1/2" x 1/2". It appeared
to him it was single injury, PW 1 another Doctor who examined him at 11.15 P.M.
on 28.11.79 when chitta was brought to SSKM Hospital, said Chitta was
semi-conscious. Chitta died at 5.30 P.M on 29.11.79 and PW 20 who conducted the
post- morterm said that the found on stitched would over the vault of the skull
one linear crack-fracture over the middle of the left parental bone to down
left parental region and one abrasion over the left shoulder and that death
might be homicidal. In other words, the medical evidence reveals one simple accerated
injury on the right PW 1 and two injuries on Chitta one on the skull and
another on the parietal region as stated above and one abrasion.
as the oral evidence is concerned PW 4, PW3, PW6, and PW7 were declared
hostile. Among the other witnesses, we have of course the evidence of PW 1 Gurudas,
who is an injured witness, and the evidence of Sachin Bhowmick PW2 and Panchanan
Bhowmick PW3. PWs2 and 3 have been rightly treated as independent witnesses,
they were ploughing the adjoining fields and they were eye witnesses.
relatives are PW8, Kishore who is the some of PW1 and P.W. 10, step-brother of
deceased; Labourers employed by P.W. 1 are PW 9, (Madan Jena), PW1 in this
evidence, refers to the manner in which disputes regarding land came into
existence and speaks to his possession of the plot in question. He says that Gajendra
Nath Mondal (A2) is his cousin and it was Gajendra who got Ananga Manjari to
file the suit. 4/5 days before 28.11.79, he got information that Sudhir Samanta
(A4), Gajendra (A2) Supriya (A1) and Jagannath (A8) had conspired together and
had been holding out threats to the effect that they would assault PW 1 and
others. His son Chitta lodged as S.D. in the police station on 25.11.79. PW1
knows all the accused, they are his co- villagers. A1 is the son-in-law of Gajendra
brother (i.e. A2's brother). A8 is also related as his (PW1's) cousin.
Biswanath (A3) cultivates land for Gajendra (A2).
says that accused persons are members of S.U.C. party.
it is clear that A2, A8, A3 are related to PW 1 while A3 and A8 and A2's
supporters. As regards the incident on 28.11.79, PW1 says that first A1, A8 and
A2 came on to the field 1855 and directed PW 1 not to harvest the paddy but to
have the dispute amicably settled by adjudication. (The Civil Suit was already
pending), PW1 says, he did not pay need and in fact told them he would harvest
the paddy and then he started harvasting the paddy. Then A1, A8 and A2 left and
about 5 minutes afterwards came back with all the remaining accused and
"several others" whom, he did not know with lathi, ballams, katani
and sickle and directed PW1 and others not to harvest, There was hot exchange
of words and when PW1 proceeded to the western boundary, and stood on the all,
A1 hit him with a lathi. It hit his right ear causing a bleeding injury. PW1
sat down on the all and then Jagannath (A8) and Nemai (A7) began to kick him
and hurled blows. PW1 fell down into the rescue of PW1. At that time Biswanath
(A3) inflicted a lathi blow on Chitta's head. Chitta fall down unconscious.
Thereafter Nemai (A7) hurried a blow with lathi on Chitta.
PW1 speaks of conspiracy 4-5 days before the incidence to which Sudhir Samanta
(A4) is said to be a party, we find that later section 120-B was dropped. The
case again A4 was that he was a member of a unlawful assembly. From the
evidence of PW1 set out above, it does not show why the A4, A5 and A9 were
treated as accused rather than being treated as part of several others and
there is nothing in the evidence either expressly or otherwise to say that A4,
A5 and A9 came there on 28.11.79 with the common object of trespass and assault
on PW1 and Chitta on the fateful day.
Bhowmick, ploughs an adjacent Land, Accused Biswanath (A3) is his cousin. He
say that when he was in his field at 9/9.30 A.M he saw PW1 harvesting paddy
with his brother PW 10 & sons and PW1 cultivated the land that year. At
that time Supriya (A1), Jagannath (A8) and Gajendra (A2) came there and asked
PW1 not to harvest the crop. PW1 did not pay heed and continued harvesting. The
above persons left and came back after 5 minutes along with accused persons and
along "with some others". Lathis were "in the hands of 2 of 3
persons". This shows that there were no ballams, sickles or other weapons
and that even the lathis were there only with 2 or 3 persons, A1 hit PW1 with lathis
which injured the PW1's right ear and he sat down, and the "5 or 6
persons" amongst the persons began to assault PW1 with kicks and blows. Chitta
rushed and then Biswanath (43) hit him on his head with lathi. Accused persons
left behind them `one or 2 latins". (In fact, police recovered one big lathi
and one small lachi from the scene of offence). PW1 stated that Chitta was
assaulted with a big lathi. In cross-examination, he stated that he did not
recollect whether he stated before the Investigating Officer that 5 or 6 persons
also assaulted PW1 with kicks and blows.
could not also recollect whether he stated before the Investigation Officer
that at first Jagannath (A8), Supriya (A1) and Gajendra (A2) came to the spot.
Thus except to say that accused A4, A6 and A9 came there along with other
accused and villagers, PW1 could not say whether A4, A3 and A9 had come there
with any common objective such as committing trespass and assault as
contemplated by some of the other accused.
the brother of PW2 and cultivates a neighbouring piece of land. He knows all
the accused. Accused Biswanath (A3) is his cousin. He refers to the land
dispute and says that initially Jagannath, Gajendra and Supriya (A8, A2, A1)
came and asked PW1 not to harvest but PW1 did not agree and proceeded to go
ahead with the harvesting. Then the above said three persons left and came
there late with all the accused persons "being armed with lathis". (This
conflicts with the evidence of PW2 that only 2 or 3 persons were carrying lathis.
He also speaks to the fact that the accused persons asked PW1 to await the
adjudication of the civil dispute but PW1 did not agree. Then Gajendra (A2)
ordered Assault and thereupon Supriya (A1) hurled a lathi blow which hit PW1 on
his right ear, and he fell down. Chitta rushed there and Biswanath (A3) hit him
with a lathi on his head.
fell down unconscious. The accused persons ran away later. Before the
Investigation Officer, he did not state about Supriya, Jagannath and Gajendra
(A1, A8 and A2) coming to PW1 earlier.
even this evidence of PW3 is general and vague and it does not show that A4, A5
and A9 had come there with any common objective and for the purpose of forming
an unlawful assembly to trespass and to assault PW1 and Chitta.
a the evidence of the labourers PW9, 11 and 12 is concerned, neither the
Sessions Court nor the High Court has relied upon any specific part of their
evidence to show that A4, A5 and A9 had come to the scene of incident with the
common objective of trespass and assault.
case of conspiracy 4 or 5 days prior to 28.11.1979 which could bring the case
under section 120-B, based on the G.D. report of Chitta, referred to by PW`,
-having been given up, we have no positive material to show that A4, A5 and A9
came there with the common objective of trespass and assault as members of an
unlawful assembly and not as part of the group of other villagers present.
the aforesaid reasons, we are of the view that it will not be safe to treat Sudhir
Samata (A4), Kalachand Ghorei (A5) and S.K. Ejahar Elias Asgar Hussain (A9) as
part of the unlawful assembly and make them vicariously liable for the overt
acts of other accused which resulted into an injury to PW1 and death of Chitta.
We, therefore, set aside their conviction under all the provisions under which
they were charged and acquit them.
shall next take up the question whether the prosecution has established the
guilt of A1, A3 and A8 under section 304 Part-I I.P.C. or whether the facts
proved can only bring their case under section 304 Part-II I.P.C.
shall once again first refer to the medical evidence. PW13, Khatua who examined
Chitta at 1.p.m. in the Taluk hospital on 28.11.1979 stated that he found one
big lacerated injury over the centre of the scalp and at that time, the patient
complained of severe head ache. That means Chitta had rehained consciousness.
Dr. A.K. Rakshit, PW14 of S.S.K.M Hospital, Calcutta (who examined Chitta at
11.15.p.m. on 28.11.1979 said that Chitta was semi- conscious, Chitta expired
at 5.30.p.m. on 29.11.1979. (i.e. nearly 32 hours after the incident). Dr. P.B.
Das PW20) who conducted the post-mortem examination on Chitta on 3.12.79 stated
that he found one stitched wound over the vault of the skull, one linear crack
fracture over the middle of the left parietal bone down left parietal region.
He also found one abrasion over the left shoulder. He said that dealt
"might be homicidal an nature" and the injuries were sufficient in
the ordinary course to cause death.
father of Chitta, stated that initially Supriya. Jayanath and Gajendra (i.e.
A1, A8 and A2) came for the plot and directed him not to harvest paddy and have
it settled by adjudication. (The Civil suit was already pending in Court).
said no head. When the accused again returned after 5 minutes, they again
directed him not to harvest the paddy.
did not agree. Then there was not exchange of words, initially PW1 was hit,
later Chitta came there and gave one blow on his head with a lathi. Later A3, Biswanath
hit Chitta on his head. Nemai (A7) hit Chitta on his body. PW2 says only 2 or 3
of the accused carried lathis. According to him even after the accused carried lathis.
According to him even after the accused returned after 5 months after the first
incident, they asked PW1 not to harvest and await the adjudication by Civil
Court. PW3 says that after the accused went back and came after 5 minutes even
then they asked Pw1 not to cut the crop but await the adjudication in Court.
PW2 and PW3 also say that one blow was given by A1 and one by A3 on the head of
Chitta and PW7 gave blows on his body. Chitta lost consciousness, but regained
it on way to Taluk hospital, and later in the right, he was semi-conscious and
died next evening on 29.11.79 at 5.30 p.m. This is the relevant material on
start with, there is no charge under Section 302 I.P.C. The charge itself was
under Section 304 Part-I. Hence the question of accused having common intention
- as required for the third clause of Section 300 I.P.C. - to cause bodily
injury to Chitta and intending such bodily injury as is sufficient in the
ordinary course of nature to cause death, has to be excluded, even going by the
prosecution case. Therefore the evidence of the doctor, PW20, cannot help in
bringing the case under Part-I of Section 304 I.P.C. Further, the circumstance
that the accused pleaded with PW1, father of deceased Chitta, more than once to
have the land dispute adjudicated through Court because the matter was already
in Court, the fact that A1 gave only one blow with lathi though on the head of Chitta
and stopped there and that later A3 hit Chitta with lathi in the parietal
region and A7 on the body, and the fact that Chitta gained consciousness soon
and was alive for over 32 hours after the incident, - all these facts lead to the
inference that each of these accused did not have any intention of causing
death or of causing such bodily injury as was likely to cause death. They can
only be imputed with knowledge that if force was used it was likely to cause
death. Therefore, the case, in our view, falls under Section 304 Part-II and
not under Section 304 Part-I I.P.C.
the aforesaid reasons, we modify the conviction of A1, A3 and A8 to one under
Section 304, Part II read with Section 149 IPC and award them a sentence of 5
years. They are ordered to surrender to custody to serve out the remaining part
of the sentence.
and A9 are acquitted of all charges as already stated. Their bail bonds are
ordered to be cancelled.
allowed as stated above.